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Code and Common Causes

“Ideologue”: Adam is right. That was a poorly defined word. What I meant it to mean was one who lets a conclusion cloud understanding. I don’t mean that I (or anyone) makes judgments from a value neutral space. Of course we have values. But I do mean that even if we disagree about some things, we don’t disagree about many important things. And I don’t think we should be disagreeing about a core point of Code – that there is an axis of alliance between government and (again the poorly chosen term) “commerce” to evolve the architecture of the Net in ways that benefit both: commerce, by making the net more tractable; government, by making the net more regulable.

This point suggests another that we apparently don’t disagree about: that there can be “code failures” (as Adam nicely puts it) that threaten important values that we all should (another value) hold dear. But that point leads Adam to claim there’s a disagreement between us when I don’t think he’s got the evidence to support the claim. Adam writes:

The cyber-libertarian believes that “code failures” are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by coerced, top-down, governmental solutions. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s).

If I say I completely agree with this statement, does this make me a cyber-libertarian? Because of course I believe this. But do I have to believe it is true always? Or is a strong presumption enough? Because again, tutored by reporting such as Declan’s, I am happy to presume code problems work themselves out in the main, more often than government actually solves anything.

But part of the argument in Code was to suggest times when that might not be true. Times when “no law” is the inducement to “bad code,” and where a “good law” would stanch evolution to bad code. Think about spam. As JZ pointed out, Declan agrees the spammers should be sued. That’s law no doubt, but not very good law. Lawsuits are expensive and slow; spammers are typically fast and cheap. Federal district court judges are not about to shoulder the extraordinary burden imposed upon the net by this scourge. And the consequence of that failure is, in my view, the deployment of lots of terrible code: blackhole boycotts, stupid filters, etc. That code has the consequence of blocking lots of legitimate mail simply to block lots of illegitimate mail.

Thus a Code-inspired suggestion is that a better law than the one Declan would rely upon might stanch the demand for bad code. Might.

High burden of proof required. Etc. And whether or not in this case, the point of the argument is to force a methodology that considers the interaction between law and code. Libertarians should have no problem with that, since that same analysis is relied upon by libertarians all the time to justify the (admittedly minimalist) regulations they justify in real space. For example a government to enforce domestic peace is justified because of the high costs of vigilantism, etc.

Likewise are we in agreement about the dangers of “forcible surrender of personal information” to the government. A Code-based focus would just suggest the risk of that happening is greater depending upon the particular architecture used by, for example, search engines. And a liberty-loving sort might want to take the temptation away from government by laying down privacy principles that nudge us to architectures that would not enable “forcible surrender[s].”

Likewise are we in agreement about the need to put “more constraints on our government” and about the need for “more laws like [section 230 of the Communications Decency Act].”

In the end, in my view, the only place we don’t agree is about the usefulness of “philosophical paradigms.” I paid my philosophy dues — 3 years of graduate work, adding onto work I had done as an undergrad. I find these “paradigms” useful summaries of last generation’s battles. And nothing is more boring than the reductionist move to turn everything into the battles our philosophy professors thought “critical.”

As I have described elsewhere, what drew me to cyberlaw originally was that it (originally) obscured politics. It confused intuitions. And in that confusion, people were forced to think. No crude shorthands. No summary judgment based upon a supposed set of affinities with debates almost a century old.

Take, for example, “cyber-collectivist.” Much of the work I’ve done since Code – though Code itself launched it in the chapter on IP — has been to insist that one form of government regulation better defend itself: copyright. My aim has been to force the regulators to show why their restriction on speech is justified, why their regulation of creativity and innovation makes sense. And my sense was initially that most of these overregulations are the simple product of special interest rent-seeking, exploiting their power in a political system too eager to regulate to favor those with the largest campaign contributions. In this battle, I’ve been allied with some of the libertarian favorites — Richard Epstein joined us in our battle against the Sonny Bono Act, as did Eugene Volokh and David Post. And I can’t believe David and I have any real disagreements about the insanity that is now called “copyright law.”

My point is that to call that work, and those views, “collectivist” is to evacuate the word of all meaning. It is to assume a binary when no binary exists. John Stuart Mill was not a “norm-collectivist” when he railed against social norms as interfering with liberty. Neither am I am collectivist when I try to show a similar dynamic with Code.

We would have a real disagreement if Adam thought code was irrelevant to liberty. He doesn’t. And we’d have a real disagreement if Adam thought it could never make sense for a government (even a libertarian government) to talk account of the restrictions on liberty effected by code and intervene in some way to remedy them. He hasn’t said that.

Instead, as I read Adam’s argument, he thinks I would intervene more than he would. Maybe. I don’t have any basis for saying one way or another. But that’s a disagreement to have about a particular case, not a disagreement of principle.

My claim is that we should not disagree about the core of Code. We should not disagree about this not because this view is without values. And not because Code’s effect has been “enormous” (one more point upon which we disagree, but forgive the personal privilege in letting that disagreement slide). We should not disagree because we share these values, just as we share the view that markets are magical things, and that innovation is the promise of salvation. No doubt there will be things we don’t agree about. But the modest points of Code are obvious today, as they were obvious to many when first made.

What’s needed is the discipline to make them have effect.

Also from This Issue

Journalist Declan McCullagh offers a mixed assessment of Lawrence Lessig’s Code and Other Laws of Cyberspace: Although Lessig was right that preserving individual liberty on the Internet is important, and although he was right to note the crucial importance of infrastructure and basic rulemaking in preserving individual choice, Lessig was mistaken in at least two ways. Lawmakers haven’t lived up to Lessig’s high expectations, and the “threat” of commercialization has largely failed to materialize.

Jonathan Zittrain argues that the differences between Lawrence Lessig and Declan McCullagh aren’t really ideological. They’re about process and approach. He personally finds much common ground with cyberlibertarians, but also believes that a great deal of effort must be put forth to create institutions that will preserve an open Internet. Neither the government nor traditional, market-based firms are necessarily well-suited to the task.

Adam Thierer condemns Lessig’s Code for its pessimism and inaccurate predictions. Where Code predicted that the future would consist largely of online “walled gardens” offering total corporate control, the walled-garden model has proven a failure. Lessig has recently claimed that he is even more confident today of the predictions he made ten years ago; Thierer doubts whether any evidence supports him. Thierer views Code and the intellectual movement it spawned as essentially one that justifies government control where no such control is warranted. He laments this movement’s growing influence.

Lawrence Lessig is happy that many of the bleaker predictions of Code have not come to pass. This is not to be taken, however, as a sign that freedom is easily gained or kept. It took an enormous amount of work on the part of many theorists, activists, coders, and lawyers to preserve liberty on the Internet. If Code looks wrong in hindsight, we have them to thank. Yet new threats loom large today, and Lessig in particular praises Jonathan Zittrain’s The Future of the Internet and How to Stop It as a warning to a new generation seeking to preserve liberty on the Internet. Future activists will have to continue the work of preserving freedom, because, he concludes, democratic government often isn’t up to the task.

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